Justice[s] blindsided

Last October, the Full Court of the Fiji High Court held that the removal of Mr Qarase and the assumption of power by Mr Bainimarama in December 2006 and January 2007 was lawful.

Last week, the Court of Appeal reversed that decision. They stopped short of reinstating Mr Qarase, commenting that “his fidelity to the Constitution ha[s] come late in his political life, and it is now more than two years since the events of December 2006” but they made declarations that his removal had been unlawful, and that it would not be unlawful for the president “to advise a dissolution of the Parliament and the issuance of writs for the election of members of the House of Representatives.”

The president has gone along with Bainimarama since January 2007 (when he ratified Bainimarama’s coup – including Bainimarama’s usurpation for a while of his own office) promptly dismissed the judiciary, abrogated the constitution, and assumed power himself. Bainimarama says he didn’t put the president up to it, but it seems Bainimarama has now been reappointed as “caretaker” prime minister. That must involve quite a lot of caring, because any elections may not be held until 2014.

The key points of the court’s decision – for the time being probably of interest only as a matter of legal history and theory – were:

The Fijian constitution laid out a code for the circumstances where a prime minister could be dismissed (so that there was very little scope for any use of prerogative powers).

The dismissal of Qarase had occurred and couldn’t be ignored (and it wasn’t practical to order his reinstatement subject to undertakings by him to call elections and then basically resign).

They were spectacularly unimpressed by the refusal of Bainimarama and the regime to give any undertakings as to when he or they might cause elections to be held.

Elections need to be held to produce a prime minister enjoying the confidence of the house of representatives, who then could advise the president in the normal course as envisaged by the constitution.

Necessity was a valid basis for the president to appoint a prime minister who could then advise the president to call an election so that, eventually, a normal prime minister could be appointed.

They also offered a spirited defence of their own and others’ acceptance of appointments to the Fijian judiciary at a time when the legality of the regime itself was questionable – namely that the Fijian people should not for that reason be deprived of the rule of law. That’s partly a nod to the rather savage treatment Jocelyn Scutt received at the hands of The Australian. Having ruled as they did, I suppose they are entitled to make that argument, even if the consequences go to show (as if there were any doubt) that lawyers can’t play rule of law on their own.